Moving Illinois Water Law into the 21st Century
By Scott Hays
President, Illinois Paddling Council
The Illinois Paddling Council (IPC) continues to work with the Illinois Environmental Council to advance state legislation clarifying the legal access to Illinois rivers for paddlers statewide. This bill clarifies that since the Northwest Ordinance of 1787, the public has always had access to America’s rivers and waterways. The Illinois Department of Natural Resources (IDNR) has mistakenly interpreted the Illinois Rivers, Lakes and Streams Act (615 ILCS 5/4.9 et seq.) by handing over public rivers they determined to be “non-navigable” waterways to private landowners.
The bill to be introduced in the 2024 Spring session amends the Rivers, Lakes, and Streams Act to ensure that the public can enjoy its full rights to access and use Illinois waterways, particularly for recreational purposes.
The issue at hand is well illustrated by comparing these two maps:
The map on the left was created by the Illinois DNR and shows only those waterways they deem to be “public” while the map on the right shows just some of the more significant but “non-public” paddleable waterways of Illinois, conveniently displayed by Illinois state senate districts (see below). According to IDNR, all of the rivers depicted on the right side map – excluding the ones on the left – are “owned” by the private landowners that own the land on their banks and can legally have any paddlers on such rivers arrested for trespassing on their “private” land.
IDNR has previously stated that they are unable to address public access to Illinois rivers without our legislature changing state law. And yet somewhat confusingly, IDNR leadership turns around and opposes this legislation claiming their agency’s interest in defending the ownership of Illinois’ waterways by private landowners. Yet IDNR’s own website describes their mission as “Managing, conserving and protecting Illinois’ natural, recreational and cultural resources … for present and future generations.”
Last year, the Illinois Supreme Court unfortunately ruled in favor of private ownership of rivers in Holm v. Kodat, but Justice P. Scott Neville, Jr., writing in a separate opinion, argued that: “The legislature should redefine navigability to be more inclusive because that would promote the State’s interest in recreational uses of waterways for all citizens of the State of Illinois.” Adding that “A legislative redefining of navigability in terms of recreational use will represent a beginning toward moving Illinois water law into the twenty-first century.” Justice Neville concluded by issuing a challenge: “I encourage the legislature to promulgate legislation so that the state’s non-navigable lakes, rivers, and streams are not limited to use by riparian landowners but are available to the public for recreational use.” (Holm v. Kodat 2022 IL 127511)
Currently the IPC, the IEC and several other organizations are actively working to bring about this legislative change. But with opposition lining up from Illinois DNR and the Illinois Farm Bureau, we will definitely need your support. The map on the right can help guide us paddlers to find our State Senator and representative in the Illinois House that represents the local river or watershed we paddle – perhaps “illegally”, according to IDNR. (online maps available at illinoispaddling.org.
We are in the process of setting up personal meetings with strategically targeted state senators and representatives to enlist their support and you can help by connecting with us to join in these local meetings to be held across our state. Or simply reach out on your own to make clear your opinion that they support this effort.
In an unpublished report on Illinois Water Law from 1998, IDNR stated: “It is not possible to predict how Illinois water law will change but change eventually it will. Law and contemporary practice can not indefinitely remain incongruous. However, in order for change to occur, a broad constituency for change must exist.” Water Law and Recreational Access: Some Questions, Answers and Considerations (Clark and Hoffman, 6/25/98).
Twenty-five years later, we have yet to realize this change. But here at the Illinois Paddling Council, and with the help of paddlers statewide like you, let’s continue expanding our “broad constituency for change” and make 2024 the year we finally “move Illinois water law into the 21st Century.”